Anti-Cybercrime Law

*"From our sadness, we awakened to a shaft of light cutting through the darkness..."

These words are contained in President Benigno Aquino III's "A Social Contract with the Filipino People" that details the Aquino administration's platform of government.

These words were used in the context of a nation awakening from the pain brought about by the death of Mr. Aquino's mother, democracy icon and former President Corazon Aquino, who passed on in Aug. 2009.

Ironically, journalists opposing a new law, Republic Act (RA) No. 10175, also known as the Cybercrime Prevention Act of 2012, signed by Mr. Aquino just last Sept. 12, are using these very words to serve as the "backdrop against which the looming darkness is to be dispelled."

In a 27-page petition for certiorari, prohibition and injunction filed with the Supreme Court (SC), multi-media journalists, led by the National Union of Journalists of the Philippines (NUJP), Philippine Press Institute (PPI), Center for Media Freedom and Responsibility (CMFR), assailed 13 provisions of RA No. 10175 and urged the high court to strike down the entire law or, in the alternative, declare as null and void the questioned provisions.

"Petitioners submit that with these provisions of the law being declared unconstitutional, the entire law is rendered without meaning and not capable of implementation. For that reason, the entire law must be struck down," the petition read.*

Petitioners assailed the constitutionality of the following:

-- Sec. 4(c)(4), which criminalizes libel on cyberspace;

-- Sec. 5(a), which lists "aiding or abetting in the Commission of Cybercrime" as an additional offense under the law;

-- Sec. 6, which raises by one degree higher the penalties provided for by the Revised Penal Code for all crimes committed through and with the use of information and communications;

-- Sec. 7, which provides that apart from prosecution under the law, any person charged for the alleged offense covered will not be spared from violations of the Revised Penal Code and other special laws;

-- Sec. 12, which authorizes law enforcement authorities to collect or record, by technical or electronic means, traffic data in real-time; -

-- Sec. 14, which authorizes law enforcement authorities, armed with a court warrant, to require "any person or service provider to disclose or submit subscriber's information, traffic data or relevant data in his/its possession or control within 72 hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation;"

-- Sec. 19, which authorizes the Dept. of Justice (DOJ) to block access to computer data when such data "is prima facie found to be in violation of the provisions of this Act;"

-- Sec. 20, which states that those who fail to comply with provisions of the law's Chapter IV (Enforcement and Implementation), specifically orders from law enforcement agencies, shall face imprisonment of prision correctional (6 months and 1 day to 6 years) in its maximum period or a fine of P100,000 or both, for each noncompliance;

-- Sec. 24, which creates, beginning effectivity of the law on Oct. 3, an inter-agency body under the Office of the President (OP) to be known as the Cybercrime Investigation and Coordinating Center (CICC) for "policy coordination" and "formulation and enforcement of the national cybersecurity plan;"

-- Sec. 26(a), which details the powers and functions of the CICC;

-- Sec. 28, which provides for the crafting of the law's Implementing Rules and Regulations (IRR) by the Dept. of Science and Technology (DOST), DOJ, and the Dept. of Interior and Local Govt. (DILG); and

-- Sec. 29, pertaining to the separability clause which shields provisions of the law not rendered invalid from any declaration of invalidity by a competent court.

Petitioners argued that these provisions violate the freedom of expression (Sections 4(c) 4, 5(a),6 and 7); the constitutional guarantee of protection against double jeopardy (Sec. 7); right to due process and equal protection (Sections 6, 7 and 19); separation of powers between the Executive and Judicial branches (Sections 14, 15, 19, 24 and 26(a)); and the right to privacy of communication and correspondences (Sec. 12).

They also claimed that the law is rendered a Bill of Attainder (a legislative act that imposes punishment without a trial) by criminalizing the use of 'information and communications technology' by virtue of Sections 4(c)(4), 5(a), and 6, and by making non-compliance to orders by law enforcement authorities punishable criminally.

Petitioners stressed that the law "unduly restricts the rights and freedoms of netizens and impacts adversely on an entire generation's way of living, studying, understanding and relating."

"Petitioners ask this Court to rule on Republic Act No. 10175, a law that establishes a regime of 'cyber authoritarianism' and undermines all the fundamental guarantees of freedoms and liberties that many have given their lives and many still give their lives work to vindicate, restore and defend," the petition read.

The petition sought the immediate issuance of a temporary restraining order (TRO) to prevent the implementation of the law and prevent the Secretary of the Department of Budget and Management from releasing some P50 million to fund its implementation.

Petitioners also urged the high court to call for oral arguments on the case.

Nothing new here. We are just following the lead of the US. I will not be surprised if this was also being endorsed by American interest. Eventually, the fascists/communists/extremists would like to control the Internet. This Bill may seem logical and necessary but it has the potential to be a weapon against civil liberties.

The "cool kids" that are against the bill? They are bandwagoneers who may or may not reallly understand the the bill. So too are the Egyptian youth hailed by US Press who "started" the Egyptian Revolution. They were "cool" kids. Now Egypt is ruled by Islamists. Oh Libya too.

As to ANON, who knows if they are part of the Black Ops of the Pentagon attacking websites all over the world to create the condition for an internet crackdown. False Flag operation like the USS Cole, USS Maine, Gulf of Tonkin Incident... who knows.

The internet is the last frontier..(I think). Control of the net is and will be a fascist/communist/extremist end goal.

Cybercrime Act: Features and issues

(JJ Disini is an associate professor at the University of the Philippines College of Law and an information technology law expert.)

Philippine Daily Inquirer

11:23 pm | Saturday, October 6th, 2012

Recently, the President signed into law two key pieces of legislation—the Cybercrime Prevention Act and the Data Privacy Act, both of which were meant to assist the development of the business process outsourcing industry in the country.

As late as last year, the Philippines reigned as the country with the biggest number of seats in the call center industry, as the BPO industry grew in terms of total revenue, foreign exchange inflow and employment generation.

BPO lobby

It is believed that the BPO industry needs the Cybercrime Act (the “Act”) to respond to the demands of foreign clients for a strong legal environment that can secure their data from being stolen and sold.

As early as 2000, the E-Commerce Act (ECA) already punished hacking but the penalties were deemed too light. The persons convicted served no jail time if they opted to plead guilty in exchange for probation in lieu of imprisonment.

Law enforcement agencies also faced various roadblocks when investigating cybercrime incidents. Even during emergency situations, service providers were reluctant to cooperate with law enforcement officers, citing the need to protect subscriber privacy.

Theoretically, search warrants would have addressed that problem but they were difficult to procure and involved a lengthy process that would have given cybercrime offenders enough time to delete precious data and cover their tracks.

In cross-border cybercrime incidents, law enforcement efforts were even more challenging since foreign governments were not equipped to respond quickly to requests for assistance and no international framework was in place to address cross-border investigations and prosecution.

To be sure, no one in government was asleep at the wheel. The Philippine National Police (PNP) and the National Bureau of Investigation (NBI), blessed with foreign-funded training in computer forensics and cybercrime investigation techniques, proceeded to organize and staff their cybercrime units. These were the two agencies that were very active in cybercrime investigation since the passage of the ECA.

Budapest Convention

Meanwhile, in the realm of international cooperation, the Department of Justice (DOJ) officially endorsed the Philippines’ accession to the Council of Europe’s Convention on Cybercrime, also known as the Budapest Convention.

The treaty was fast becoming the vehicle to harmonize cybercrime definitions and promoted international cooperation in cybercrime enforcement and investigation. After all, the Budapest Convention was signed by many countries in Europe and even counted non-EU countries such as the United States, Canada, Japan, China and South Africa as among its member-states.

It was against this backdrop that various cybercrime bills were deliberated upon, in both houses of Congress. Earlier attempts to enact the law failed and it would take Congress more than 10 years to pass the Cybercrime Act.

Salient features

The salient features of the Act include internationally consistent definitions for certain cybercrimes, nuanced liability for perpetrators of cybercrimes, increased penalties, greater authority granted to law enforcement authorities, expansive jurisdictional authority to prosecute cybercrimes, provisions for international cybercrime coordination efforts and greater ability to combat cybercrimes.

Indeed, many of the cybercrimes defined under the Act hewed closely to the Budapest Convention and it borrowed heavily from the convention’s definition of illegal access and interception, data and system interference, misuse of devices, computer-related forgery and computer-related fraud.

Attempts now punishable

Under the ECA, cybercrimes can be prosecuted only if the offense was consummated. Unsuccessful intrusions or hacking incidents were not punishable. From a law enforcement standpoint, this means no arrest can occur until the harm or injury is actually inflicted upon the victims. Mere attempts were not punishable. Also, only the principal perpetrator was subject to criminal penalties.

These were addressed under the Act, where attempted cybercrimes are now punished and those who aid and abet the commission of cybercrimes are also made liable. This more nuanced approach to liability translates to greater flexibility in law enforcement and prosecution since cybercrimes can be stopped while being committed, though not yet consummated.

Stiffer penalties

The Act also increased the penalties from those imposed under the ECA. From the standard three-year prison term under the ECA, the Act increased the penalty to a period from six to 12 years for a lot of cybercimes. This ensured that any person convicted under the Act would surely face imprisonment since the option to apply for probation would no longer be available.

In direct response to the difficulties faced by law enforcement agencies in investigating cybercrime incidents, the Act gave greater authority to the PNP and NBI to engage in warrantless real-time collection of anonymized traffic data as well as the explicit authority to secure warrants for the interception of all types of electronic communication.

To prevent the destruction of precious evidence housed in various service providers like cell phone companies and broadband providers, the Act requires the preservation of data for a minimum of six months. This gives law enforcement authorities the ability to investigate past cybercrime incidents as well as lead time to get pertinent court orders to access such data.

The Act further specifies the means and manner by which law enforcement authorities should conduct computer-related searches and seizures of data, their custody, preservation and destruction.

Expanded jurisdiction

Since many cybercrimes are transnational in character, Congress vested in courts an expanded jurisdiction over the commission of cybercrimes. The pre-war Revised Penal Code took a more conservative stance and as a rule, the law was not applicable to acts committed outside the physical boundaries of the republic.

In contrast, the application of the Act was expanded beyond the Philippines so long as the perpetrator was a Filipino, or the effects of the cybercrime were felt within the country. In addition, the law applied if any of the elements were committed in the country or if these were done using equipment located here.

Cybercrime courts, office

Accordingly, to ensure the proper adjudication of cybercrimes, the Act mandates specialized training for judges in newly created cybercrime courts.

Since the Philippines has yet to enact the Budapest Convention and take advantage of the international cooperation available to its member-states, Congress, in the meantime, organized the Cybercrime Office at the DOJ and designated it as the central authority in all matters related to international mutual assistance and extradition. It is meant as a stop-gap measure, which hopefully can transition seamlessly when the country accedes to the treaty.

Emergency response team

Finally, the Cybercrime Act created the Cybercrime Investigation and Coordinating Center for policy coordination among concerned agencies and the formulation of a national cybersecurity plan that includes the creation of a computer emergency response team.

Clearly, the approach taken by Congress in the Cybercrime Act was to enlist the participation of various sectors of government to combat cybercrime not only at the national level but also internationally. While the BPO industry lobbied for the passage of the Act, it is undeniably a statute that applies to anyone who can potentially become a victim of cybercrime.

Unfortunately, not all statutes are perfect and although the best of intentions are embedded throughout the Act, some flaws in the law have caught the attention of the public, of late.

Indeed, various petitions have been lodged in the Supreme Court to question the constitutionality of the Act’s provisions relating to libel, increased penalties, real-time collection of traffic data and the so-called takedown provision.

Online libel was not an original creation under the Act. In fact, as early as 2010, the Supreme Court recognized that comments on a blog entry could give rise to a prosecution for libel. To its credit, the high court reasonably interpreted the law. The complainant argued that it was permissible to choose where to initiate the case upon the theory that online libel was published simultaneously throughout the Philippines.

Recognizing that the law did not allow a party to choose inconvenient venues for online libel cases, the Court limited the choice to only one—the place where the complainant resides.

One degree higher

The Act’s libel provision seemed harmless on its face. The law itself imposed no specific penalty unlike in other cybercrimes mentioned in the statute. But the Act provides that online libel is punished by one degree higher and that the prosecution under the law would still be independent of a separate prosecution for libel under the Revised Penal Code.

Under the old regime, an accused facing libel can expect to face no more than four years and two months jail time. Under the Act, the maximum penalty shot up to 10 years. Since the penalties were cumulative, a single act of online libel can attract a maximum jail time of more than 14 years.

Double convictions

The double convictions and the increased penalties made the accused ineligible for probation, thus guaranteeing imprisonment.

Since the acts and the crime of online libel are the same as that defined in the Revised Penal Code, it has been argued that the law violates the rule against double jeopardy which seeks to protect citizens against being penalized twice for the same offense.

Also, by imposing increased penalties for ordinary crimes committed “by, through, or with the use” of information and communications technologies (ICTs), Congress was unfairly segregating users of ICTs and treating them more harshly.

Protection clause violated

There seems to be no rational basis for this classification and the discrimination imposed by Congress violates the equal protection clause that requires the government to treat all citizens equally.

Since the online libel law targets the fundamental right to free speech, the onus is upon the government to demonstrate a compelling state interest in penalizing online libel in this manner, and show that there was no less restrictive alternative available to promote that interest.

In the desire to empower law enforcement agencies, the Act authorizes the PNP and the NBI to conduct real-time collection of traffic data, or data about a communication’s origin, destination, route, date, size and duration, but excluding identities and content.

In the context of mobile communications, traffic data will reveal the originating number, the destination number, the time and date of the communication, as well as the length of the conversation or the size of the SMS message sent.

Surveillance

The law enforcement authorities may claim that the traffic data are anonymous, but the fact is that the law allows collection of “specified communications,” which necessarily means the PNP or NBI must already know something about the communications or the identity of their source.

Even if they did not, it is easy to know the identity of a cell phone’s owner by simply dialing the number and employing various social engineering techniques to get that information. Once the identity of the person has been determined, the real-time collection of traffic data effectively becomes a targeted surveillance.

That is not to say that government authorities are prevented from engaging in surveillance, but the Constitution requires the intervention of a judge and the issuance of a warrant before this authority can be exercised.

Sadly, the real-time collection of traffic data under the Act does not afford anyone the same protection. Indeed, the privacy of suspected terrorists are protected to a greater degree under the Human Security Act that at least requires the intervention of the Court of Appeals in any surveillance and the careful handling of the evidence collected.

No similar protections exist under the Act, not even in the case of ordinary citizens. Certainly, these violate the right to the privacy of communications, and the right against unreasonable searches and seizure.

Most odious provision

Finally, the most odious provision of the Act is the so-called takedown provision that authorizes the DOJ to block access to any content upon a prima facie (or first glance) finding of a violation of the provisions of the Act.

This means that a person who believes he has become the victim of an online libel can file a complaint in the DOJ and if at first blush it appears there has been a violation of the Act, an order will be issued directing Internet service providers to block the content.

Under this scenario, the DOJ has effectively become the judge, jury and executioner without the benefit of a trial or a conviction established beyond reasonable doubt.

No time limit

The takedown order has no time limit and can be in place for years or even forever. The complainant is not required to file a case in court while the takedown order is in place. In fact, it is likely that no such case will ever be filed since the remedy sought has already been obtained, as the online content is already gone.

The takedown power can even be invoked to block sites wholesale such as those that allegedly violate the Retail Trade Law (Amazon, Alibaba, Ebay, iTunes) or offer voice services without the benefit of a local franchise (Skype, Googletalk) or facilitate copyright infringement (Piratebay, Filestube, Bittorrent) or allow online gambling (Pokerstars) or violate the Data Privacy Act (Facebook, Friendster).

These cumulative blocks and filters permit the DOJ to establish the Philippine equivalent of the Great Firewall of China. Certainly, with this takedown provision, the DOJ will be the most powerful authority on all matters involving the Philippine online community.

Prior restraint

From a free speech standpoint, the takedown provision is an effective prior restraint to the right of a person to express himself.

Even though the blocking of the content happens after the speech is made, the censorship that is done immediately or shortly after the posting of the allegedly offensive content, without the benefit of a trial or proof beyond reasonable doubt, is no different from preventing the speech itself.

Under constitutional law a prior restraint upon the freedom of expression is not permitted and is presumed to be unconstitutional.

The burden rests with the state to show that the suppression of speech is necessary to avoid a clear and present danger of evils, which such speech will bring about and which the State has a right to prevent.

In the case of the takedown provision, the grant of overbroad authority to the DOJ under all circumstances makes it difficult to hurdle the challenges against its constitutional infirmity.

Anti-cybercrime law: It may be harsh to call me a cybercriminal, but the new law says

Most people would agree that there is a need to curb the prevalence of cyberbullying. But should it be at the expense of free speech?

By Alfredo Morales Santos

Philippine Daily Inquirer

8:59 pm | Friday, October 5th, 2012

Like the lights on a building going out one by one, I watched my newsfeed on Facebook and Twitter get crowded with black squares as people switched their headers and profile pictures to demonstrate their protest against the anti-cybercrime law.

A screen capture of an inane question from a senatorial aspirant, on whether the law infringes on the freedom of expression, was immediately trending.

Sen. Tito Sotto, everyone’s favorite punching bag, was immediately at the forefront of the discussion, landing in Forbes. National heroes like José Rizal and Apolinario Mabini were pictured gagged with a censoring black bar. The Internet Armageddon is about to hit Philippine cyberspace.

The anti-cybercrime law received outright condemnation from various sectors in and outside the Philippines. The primary issue against it is the provision on cyberlibel snuck in by Sen. Tito Sotto, who proudly admitted it, and sees nothing wrong with having done so.

A columnist in Forbes magazine said the law, due to the provision on cyberlibel, makes the Stop Online Piracy Act (Sopa) in the US seem reasonable, as the latter only seeks to take down “file-sharing.” International organizations, along with the local human rights watch, had expressed concerns that this is a step backward for the Philippines, which is already behind the international community in decriminalizing libel.

Exception

Under the new law, cyberlibel imposes a penalty of reclusion perpetua, a greater penalty than ordinary libel. Sotto reasoned that if mainstream media are liable for ordinary libel, what is so special with bloggers and users of social media that merits exception to the threat of penalty? He says the law will make the people act more responsibly on cyberspace. He is on a mission to civilize, to single-handedly change the culture on the Internet.

“Yes, I did it. I inserted the provision on libel. Because I believe in it and I don’t think there’s any additional harm.”—Sen. Vicente “Tito” Sotto III (in an article written by Paul Tassi, published in www.forbes.com, Oct. 2).

Statements like this, in the word of the Forbes columnist, only reveals a lack of understanding of how the Internet works. It is saddening because it also shows a disconnect between the upper rung of the power structure in the Philippines and the general populace, particularly with the middle class, who use the Internet to express grievances against the government.

This does a great disservice to the cause. Most people would agree that there is a need to curb the prevalence of cyberbullying. But should it be at the expense of free speech? The problem with the provision on cyberlibel is, it is vague, with enough wiggle room to enable the government to crack down on dissenters.

Internet giant Google, the second most valuable company in the world, decreed, “Democracy works on the Web.” Cyber-space recently showed this in action on Reddit, when a college student posted a photo of a Sikh woman sporting body hair. It immediately received a backlash, and overturned the table in favor of the woman who shared her belief with the users of the social media.

There are studies that show that anonymity on the Internet makes people more mean, because it allows them to escape accountability. Websites, especially news outlets, responded to this problem by installing the service Disqus, which obliges readers to use Facebook and other social media to identify themselves, to allow readers to comment. This has resulted in more intelligible discourses on the web.

There is still the problem of fictitious accounts. But it’s a problem that is nearing a solution, too. Facebook has recently cracked down on fake accounts on their website. The point is, like a free market, the Web has a way of regulating and correcting itself without need for too much interference from the government.

Jeff Jarvis, in his book “What Would Google Do,” documents how netizens use the Internet to express their dissatisfaction with corporation. Jarvis popularly took on hardware maker Dell due to its bad customer service. He subsequently collaborated with the tech giant on how to make their product better. Jarvis continues on this theme, expounding on how the Internet enables “power sharing” between corporations and the ordinary consumer. The concentration of power in corporation is democratized through the Internet—and it works!

This is the same thing that’s happening in the Philippines. Filipinos are the top users of social media websites like Facebook. We have shifted from being the text capital of the world to being the social-media capital of the world. It was only a matter of time when this shift also influenced how we govern ourselves. Filipinos quickly express their grievances against the government on Facebook newsfeed, instead of physically taking it to the parliaments of the streets.

Government leaders and officers were quickly dumbfounded by the instant publicity for their inactions and mistakes. They found themselves in a situation where their power meant nothing. The Internet has shifted control to the Filipinos on Facebook and Twitter.

But there are government leaders who quickly acknowledged this reality. Sen. Pia Cayetano and Sen. Chiz Escudero are among the popular politicians on Twitter, and they engage their followers and address their grievances.

Escudero said the cyberlibel provision was a mistake, while Cayetano admitted, on Twitter, that she missed out on the provision.

New media

President Aquino actively used social media in his 2010 campaign, even installing a New Media group under Leah Navarro of the Black and White Movement. Interestingly, Sotto is inactive on social media.

To be fair to President Aquino, his only course of action is to sign the law or veto it as a whole (line vetoing is only allowed in budget acts). He must have weighed the good and the bad of the law, and found that there is a pressing need to curb evils like child pornography, piracy and hacking, among others. The ball is now with the Supreme Court, and it is up to them to strike down provisions that it deems in conflict with the Constitution. Escudero and Cayetano have already filed an amending bill.

The fiasco over the anti-cybercrime law only goes to show the ability of Internet users to influence government and serve as a platform to counter legislation and policies that are deemed detrimental to the people. Leaders are able to quickly see the clamor for it, and respond. Not only does the Internet make for a participative government; it also compels the government to be more responsive.

My newsfeed is still on a blackout. It makes chatting a little tricky, but it’s a small sacrifice to make to take a stand against the provision on cyberlibel.

With the passage of the Cybercrime Prevention Act (RA 10175), the government has entered the online thicket in a substantial way. Petitions have been filed questioning the validity of the Act, giving the Supreme Court the opportunity to define our rights in digital space. This is an important case because the Internet has become an important platform for individual and social activities that generate meaning and profits, produce identities and opportunities, or structure views and conversations. In my opinion, even a generous reading will not save RA 10175; it is unconstitutional because it is overbroad.

Let us assume that the government can prohibit online all the activities it can prohibit offline—libel, identity theft, child porn, trespass, malicious mischief, estafa, among others. Further assume that the government can legitimately increase the penalties for online crimes on the theory that cybercrime poses greater dangers to society. Assume even further that the government can engage in “real-time collection of traffic data” in the same way that it can monitor traffic on public streets. Finally, assume that the Department of Justice’s authority to “issue an order to restrict or block access to computer data” that prima facie violates the law is akin to the authority of a police officer to make arrests for crimes committed in her presence. Will the law still be unconstitutional?

The answer is yes. This is because of the special nature of freedom of speech and of the press. What this means is that our Constitution requires that the government make a distinction between speech that offends private citizens and those that hurt public officers and public figures or talk about matters of public interest. The government has the right to protect private identity and reputation, whether online or offline; it also has the right to protect its citizens against fraud, trespass, and malicious commercial activity.

But the Constitution disables it from interfering with citizens’ attempt to praise, criticize, or even make fun of public figures and public officers, or discuss public issues. Decisional rules compel the government to clearly make this distinction under pain of nullity.

The Cybercrime Prevention Act is a classic case of a law that suffers from the vice of overbreadth. In constitutional parlance, the doctrine states that “a government’s purpose to control or prevent activities constitutionally subject to regulation may not be achieved by unnecessarily broad means that sweep into and thereby invade the area of protected freedoms.” Such constitutional policy is meant to impose upon the legislature a high standard of precision in the drafting of laws that affect free speech. Whereas ordinarily the poor draftsmanship of a law is not a ground to have it declared unconstitutional, in cases where free speech is affected the courts require both clarity in language and fidelity to speech-protective norms. The reason for this is that a badly written or overbroad statute can produce a chilling effect, a situation where people who are otherwise within their rights to speak choose to err on the side of caution and thus decide to keep their peace. This risk-averse attitude freezes the speech environment and prevents citizens from exercising their freedoms in order to check the government, make public officials accountable, or talk about controversial ideas.

As a preventive measure, constitutional litigation rules allow in these situations what is known as a facial challenge or an attack on the validity of the entire statute. Normally, citizens are allowed to question only the constitutional validity of laws that apply to and have been enforced against them. But given the importance of avoiding a chilling effect on free speech, an exception is made. The consequence is that the rules of standing (on whether or not a citizen has the right to file the case in the first place) are substantially relaxed, enabling courageous citizens whose rights are secure the opportunity to litigate the case in favor of the silent majority. Finally, if the court finds even a single portion of the statute violative of free speech rights, it is justified in striking down not only the offending proviso but the entire statute. The net effect is to give the legislature another shot at drafting the statute, bearing in mind the need to protect free speech values while regulating non-speech-related activity.

Applying these rules, the only defect that the various petitioners before the Supreme Court need to show is the absence of a distinction in the DOJ’s so-called takedown powers between speech and non-speech-related activity. Thus, even if the DOJ can block access to computer data used to commit cybersquatting, identity theft, defamation of private persons, or fraud, the absence of a distinction in the law that protects citizens from the takedown clause for cyberspeech against public officers and public figures nullifies the entire statute.

For those less interested in constitutional theory, I offer some basic rules: What the government cannot do offline with your rights, it likewise cannot do just because you went online. If you have the right to bully Sen. Vicente Sotto and his loyal staff of unrepentant plagiarists by rallying in front of the Senate and spending hard-earned money on leaflets and tarpaulins to criticize them, then you certainly also have the right to spend precious bandwidth to cyberbully them.

Florin T. Hilbay is an associate professor at the University of the Philippines College of Law, where he teaches constitutional law. He is also the director of the Institute of Government and Law Reform of the UP Law Center.

Edgardo Angara, author of the anticybercrime law, justifies it in this way: “Why was the penalty (for libel) raised? The only rationale I can think of is that because of the novelty and swiftness, and the spread and reach of information and communications technology, it becomes an aggravating circumstance. With one click, you can send it (the libelous statement) all over the world.”

That is all very well, except for one thing. Who’s to say a statement is libelous or not?

If this law had been in effect five months ago, Renato Corona might never have been ousted. Among the things that ousted him was the netizens themselves making their sentiments known to the senators—a thing that posed tremendous consequences for the elections. The wording of those sentiments would have made a great deal of them arguably libelous, or at least slanderous. Corona would have considered it so. The justices would have considered it so. They could have used the law to make an example of a blogger, Twitter-er, Facebook-er, or two to stop the tide of public outrage and vituperation against them.

With this law, no one will be called a thief again. No one will be called an opportunist, fascist, or idiot again. No one will be called a politician with the morals of a prostitute again. No one may be permitted to say so—except Miriam Defensor-Santiago.

But this is just the tip of the iceberg about what’s wrong with the law. The bulk of it is that by looking at the possible abuses of cyberspace, the law turns a blind eye to its awe-inspiring power to make the public matter in social discourse. By attempting to curb the excesses of cyberspace, the law curbs instead its history-altering capacity to effect change. The medium is new and it is novel. Which only drives home the point that the law was made by people who are either clueless about it, or glimpse its power and want precisely to stop it from subverting their entrenched position.

In fact, cyberspace is the most liberating and democratizing force to have come to us in a long time, perhaps for the first time.

Elsewhere in the world we’ve seen that—in the Arab Spring, or the uprisings in Egypt and neighboring countries against despotic rule. WikiLeaks founder, Julian Assange, had a point when he told a sideline meeting of the UN recently that Barack Obama was a hypocrite to say that America was the inspirer of those revolts: “It must come as a surprise to Tunisians (that) the US supported the forces of change in Tunisia.” In fact, he said, WikiLeaks had more to do with it, with its exposés of the nastiness of the now deposed rulers, among them Tunisia’s Zine El Abidine Ben Ali. But we see as well in Assange’s fate—he has been forced to hide in the Ecuadorian Embassy in the heart of London to avoid being fed to the wolves—what an anticybercrime law has in store for transgressors.

Closer to home, you see the immense power of cyberspace to democratize this country in a couple of ways.

One is that it offers a way for the citizens to get back at the people who oppress them. Certainly, it offers a way to put the corrupt to shame. Which makes it the most ironic thing in the world that the anticybercrime law was passed under the very government that professes to fight corruption. I’ve said it again and again: Government alone cannot stop corruption, it needs the help of the public to do it. The public can do that by making the corrupt pay a high price for corruption.

That is how it’s done in other countries. In Japan and Korea, the culture itself does the trick: Shame and dishonor are enough to make the shamed and dishonored disembowel themselves. In America and Western Europe, public opinion does the trick: Public revulsion and opprobrium are enough, if not to make the publicly reviled and detested hang themselves, at least to make them resign.

Here, it’s cyberspace, which is far more spontaneous and unfettered than the mainstream media and, more importantly, which directly reflects the views of the public, that has the potential, and power, to do that.

With one click, calling someone a crook will be sent all over the world? Well, if he is a crook—and the public officials netizens call so are invariably so—I’m glad the information is sent instantaneously to the world. Certainly I’m glad it is sent instantaneously to the person concerned, the better for him to know that we know, mahiya ka sa balat mo, naturingan ka pa namang public servant.

Two, and far more importantly, like I said last time, what makes the Western democracies real democracies is that the people do not just participate in national life by voting but by shaping policies and decision-making through public opinion. That public opinion isn’t expressed only when survey-takers ask them what they think of things, it is expressed voluntarily, constantly, naturally. It’s not sporadic, it’s permanent. It’s not occasional, it’s continuous. It’s not a footnote to governance, it’s the text of governance.

More than anything else, it’s cyberspace that has made that possible for us. Almost unnoticed, it has come to us like a gift from the gods. Overnight it has become possible for ordinary citizens (the youth in particular) to have their say on life, without having to go to the radio to complain, without having to write letters to the editor (and compete with a thousand other letters) to set things right, without feeling powerless in the face of being wooed like lovers as voters but dismissed like beggars as citizens.

And the senators—with the luminous exception of T.G. Guingona who had the imagination to vote against the law, and who continuously oppose the law—will spit on this gift as though it were a curse. No wonder the netizens are fit to be tied.

It could have remained Sotto’s Folly, the cybercrime law with the controversial libel provision that Senator Vicente Sotto III inserted during the Senate deliberations on the bill.

But with the president strongly standing by his signing it into law, the bill has now become P-noy’s Cyberfolly. He could have said, I made a mistake, and I’m open to amending it, like Senators Edgardo Angara and Francis Escudero did. But he chose to draw a line in the sand and say here I stand.

A flawed law

I belong to the same coalition led by the president, but I have to differ with him on this issue. Let me state very simply the reasons why.

First of all, instead of decriminalizing libel, as so many legal and constitutional experts have strongly suggested, the law extends it to the cyberspace, thanks to the sly maneuver of that plagiarist Tito Sotto and the somnambulistic behavior of most senators and the members of the Senate-House bicameral committee.

Second, the libel law is invoked for a totally inappropriate context. There are editorial controls that operate when it comes to the established media. These professional restraints are not available on the Internet and social media, which promote and facilitate the expression of individual opinion in its most spontaneous forms. The Internet is the premium arena for free speech, where people should be able to express themselves without fear. This does not mean that there are no checks on information and opinion, as Senator Angara claimed when he said without the cybercrime law, the Internet would be the “Wild West.” Opinions expressed on the Internet are taken provisionally by most users, who only get convinced of the truth of an allegation after the flurry of exchanges on the net. The allegation that Senator Sotto is vehemently against the RH Bill because he wants to be the ambassador to the Vatican can be easily proven to be false via the Internet’s self-policing via research-based exchange, just as the allegation that he is a shameless plagiarist can be easily proven true by the same process.

Third, there is absolutely no basis for the provision that makes the penalty for cybercrime, including libel, one degree higher than is provided for in the Revised Penal Code.

There are other disturbing provisions, such as Section 19, which would authorize the Department of Justice to issue an order to take down a website simply on assessment that it is engaged in prima facie violations of the provisions of the cybercrime law.

This power is too broad and can easily be abused.

Why the President’s solution is no solution

Amending the law is obviously the way to go, one that would be strengthened should the Supreme Court find the law unconstitutional. But the President has refused to entertain this route, offering instead to reduce penalties for internet libel.

President Aquino’s offer, however, is no solution at all since the problem is the insertion of the libel provision itself. This is not only against free speech and thus unconstitutional, but it will have a chilling effect on Internet traffic. To reiterate, people should have be able to call Sotto a plagiarist, Vice President Binay a power-hungry politician, Erap a clown, the President a paternalistic elitist, Senator Enrile an unprincipled power broker, and Senator Trillanes an agent of China without fear of being slapped with a libel suit the next day. Let the Internet process of reply and counter-reply based on the use of evidence and counterevidence resolve the issue. This process, after all, has been found effective in producing the best and most balanced encyclopedia around, Wikipedia. And believe me, most Internet users are hardened skeptics: they won’t fall for claims that have the slightest whiff of falsehood about them, though there are, of course, always a few exceptions.

My main concern here, however, is to raise the possible connection between the President’s standing firm on cyberlibel and Malacanang’s lack of enthusiasm for the Freedom of Information Bill (FOI), which incidentally P-noy promised to prioritize during his campaign for the presidency. The cybercrime law effectively restricts freedom of expression. FOI is an enabling law that would facilitate freedom of expression by institutionalizing access to government information that would otherwise remain under wraps.

Bad advice or ideological stance?

Some say that Malacanang’s attitude to both bills reflects a wariness of both established and social media. When I asked him why Malacanang did not make FOI a priority, one Palace official, without invoking confidentiality, told me flat out that the Palace had problems with the bill because “the press already has too much power.” This person might have merited an A+ for frankness but an F on free speech and freedom of information, which are among the pillars of a democracy.

How much of Malacanang’s lack of support for FOI stems from the President himself? And was it the President himself who insisted on standing firm on the libel provision? Or did his stand on both issues come mainly from bad advice?

I certainly hope it is the latter, for that would mean there is a greater possibility of a retreat on the Cybercrime Prevention Act and regaining momentum on FOI. But if it is a case of an ideological position—that is a conservative, elitist stance on free speech and transparency issues—then this is truly disturbing. For the success of the governance reforms, like the anti-corruption campaign, that the President is now promoting, cannot ultimately be separated from the expansion of free speech and deepening of transparency.

SAN FRANCISCO – Social media and the World Wide Web are still relatively new, so intense debates on such issues as free speech, privacy and cybercrime are to be expected and even necessary.

But Tito Sotto is trying to drag the discussion to the lowest level possible.

“Gusto nila magpa-file naman ako ng bill, alisin na natin ang libel para pwede ko na rin silang murahin (If they want, I will file a bill to remove libel so I can also engage them in mudslinging),” the senator said in a radio interview, as reported in the Philippine Daily Inquirer.

“Pwede, alisin natin para parehas na ang laban. Maganda yan, pag-aaralan ko yan hanggang Lunes (We can remove that to have a fair play. That’s a good idea. I will study that until Monday),” he said.

Welcome to the world of the incredible shrinking senator.

Beyond the debates on reproductive rights and the new anti-cybercrime law, Sotto’s rant creates another dilemma for Filipinos: How in the world do you explain to young Filipinos that a senator of the republic is behaving like a kid throwing a tantrum in the playground because other children refuse to play by his rules?

Some lawmakers and public officials argue that the reaction to the cybercrime law is overblown, that there really is now a plan to arrest anyone for simply liking a post or sharing a tweet.

But many other legal experts and press freedom advocates highlight the potential for abuse. This was underscored by the controversy over an alleged Philippine National Police Facebook account which posted a warning, “Foul words against our police officers can be used as evidence now to file a case against you in a court of law.”

The PNP has denied that it has anything to do with the account. But whoever posted the comment sure sounded like they knew what they were talking about, and are gleefully excited by the power the new law gives law enforcers.

“Watch out the CIDG Anti-Transnational Crime is now conducting background investigation against you,” the post said, even boasting that the PNP “has sets of equipment comparable or even more sophisticated/latest that other cybercrime units in the world … They can detect the location of the owner of Facebook account of a certain person.”

Besides, the context in which this new provision is important – Sotto pushed it after social media exposed him. This was not in reaction to lies and falsehoods. This was in reaction to truth.

The bloggers made the public and the mainstream media aware of his use of passages without proper attribution– and now Sotto is hitting back.

There’s also a debate on the country’s libel laws as advocates also push for the decriminalization of libel.

Still, the Sotto fiasco has had one positive effect – it gave Filipino netizens a chance to demonstrate their power.

They did it last year when a video clip of a crying dancing boy on Willie Revillame’s show sparked such intense outrage that TV5 was forced to change its policies related to kids and spurred greater awareness of how children are treated on television.

Filipino netizens are flexing their muscles again today. You can check out some of the best cybercrime law memes here.

One even shows that Sotto is wrong to say Filipino netizens are picking on him. Even President Benigno Aquino III, who signed the law after all, is facing criticism.

The meme shows a picture of the late former senator Benigno Aquino Jr. and the caption, “Mr. President, this man died to give Filipinos a voice. … Oh wait, he’s your dad.”

Someone even turned the alleged PNP warning posts into a meme that pokes fun at the Aquino administration’s tourism slogan. The heading reads: “Freedom of Speech. More fun in the Philippines.”